Monday, February 20, 2012

Stolen Valor Fraud

The “Stolen Valor Act” punishes with a prison sentence up to six months to a year those who “falsely represent” that they have received any “military decoration or medal.”

The bill has an enviable parentage: In a 1782 military order, George Washington proclaimed, “Should any who are not entitled to the honors have the insolence to assume the badges of them, they shall be severely punished.”

The “Stolen Valor Act” passed though the U.S. Congress without resistance in 2006 and eventually washed up on the shores of the 9th U.S. Circuit Court of Appeals, which overturned a conviction under the act, Chief Judge Alex Kozinski deciding: “If false statements are unprotected, then the government can prosecute not only the man who tells tall tales of winning the Congressional Medal of Honor, but also the Jdater who falsely claims he’s Jewish or the dentist who assures you it won’t hurt a bit.”

Responding to a request that his decision be reconsidered, Mr. Kozinski wrote, “Saints may always tell the truth, but for mortals living means lying… Without the robust protections of the First Amendment, the white lies, exaggerations and deceptions that are an integral part of human intercourse would become targets of censorship” interposing the government as a “truth police” armed with” the power to punish.”

Mr. Kozinski’s view of human nature is not a happy one. Surely as a judge he knows that the First Amendment cannot be used to excuse, just to pick at random one example, the “white lies, exaggerations and deceptions” that occasionally will appear in affidavits used by state attorneys general in ex parte proceedings to expropriate business property without which a business cannot continue to operate. Under such circumstances, one expects judges to require even such exalted personages as attorneys general to hew strictly to the truth. Most witnesses in trials swear an oath on sacred scripture to tell the truth, the whole truth and nothing but the truth. Judges on these occasions may apply sanctions to such witnesses as, exercising their First Amendment right to lie, subvert justice dispensed by judges armed with the power to punish them.

Some think the decision of the court is, to put it bluntly, batty. One wonders what General Washington might have made of Mr. Kozinski’s mode of reasoning. The judge’s ruling effectively abolishes the distinction upon which the “Stolen Valor Act” solidly rests and blithely assumes Congress cannot shape a law that will apply to those who make false representations concerning medals never awarded to them without legally impairing Jewish daters who misrepresent themselves to women.

Other jurists have ruled that the law seeks to prevent fraud and, precisely because it reprobates fraudulent claims with respect to any “military decoration or medal,” a dentist falsely assuring patients that drilling won’t hurt them need not fear the “Stolen Valor Act” – unless, of course, the dentist has made fraudulent claims relating to medals unearned that may have played some part in securing his employment or other emoluments or special treatment he may not have received in the absence of such claims.

U.S. Circuit Judge Timothy Tymkovich, writing for another panel, pointed out that the U.S. Supreme Court time after time has observed that “false statements of fact do not enjoy constitutional protection, except to the extent necessary to protect more valuable speech.” There is no reason to suppose that upholding a narrowly circumscribed law criminalizing false claims about receiving military honors, the judge wrote, would lead to a “slippery slope where Congress could criminalize an appallingly wide swath of ironic, dramatic, diplomatic, and otherwise polite speech.”

Nor is there any reason why Connecticut’s U.S. Congressional delegation should abstain from responding to the issue because they fear influencing the decision of the U.S. Supreme Court, a highly unlikely prospect.

The Barack Obama administration, supported by veterans groups, views the “Stolen Valor Act” as a narrowly crafted bill that protects the system of military awards established during the Revolutionary war by General Washington. Serendipitously, the high court will hear the case on Wednesday, February 22, the First president’s 280th birthday.

By affirming the original “Stolen Valor Act,” Connecticut’s uniformly Democratic U.S. Congressional delegation will be lending its support to a necessary bill preventing frauds from obtaining social benefits that flow to veterans properly awarded medals for honorable service in the military. And U.S. Senator Dick Blumenthal, a former Connecticut Attorney General whose very first piece of legislation upon entering the U.S. Congress was the “Honoring All Veteran’s Act," should be leading the state’s Congressional delegation in an effort to assure that the will of Congress as embodied in the “Stolen Valor Act” should not be frustrated by highly questionable court decisions.

Decisions by judges who could not detect fraud if it bit them on the nose dishonor both the court and veterans, and Senator Blumenthal’s goal, as reported on his U.S. Senate site, “has always been and will remain the same as it is today: to keep faith with our veterans and to honor our promises to them.”